Jeffery v. London Life Insurance Company

CITATION: Jeffery v. London Life Insurance Company, 2009 ONCA 819

DATE: 20091120

DOCKET: C51159

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Laskin and Cronk JJ.A.

Proceedings Under The Class Proceedings Act, 1992, S.O. 1992, c. 6

An Application by the Attorney General of Canada for a Prohibition Order Under Section 37 of the Canada Evidence Act, R.S. 1985, c. C-5, As Amended

BETWEEN

James Jeffery and D’Alton S. Rudd

Plaintiffs (Respondents)

and

London Life Insurance Company and The Great-West Life Assurance Company

Defendants (Respondents)

AND BETWEEN

John Douglas McKittrick

Plaintiff (Respondent)

and

The Great-West Life Assurance Company and Great-West Lifeco Inc.

Defendants (Respondents)

COUNSEL:

Jacqueline Dais-Visca, for the appellant, the Attorney General of Canada

Sheila Block and Justin G. Necpal, for the defendants (respondents in appeal), London Life Insurance Company and The Great-West Life Assurance Company

Paul Bates and Robert Gain, for the plaintiffs (respondents in appeal), James Jeffrey, D’Alton S. Rudd and John Douglas McKittrick

Heard: November 19, 2009

On appeal from the order of Justice J. N. Morissette of the Superior Court of Justice, dated October 13, 2009.

ENDORSEMENT

[1] The Attorney General of Canada seeks to set aside paragraphs three to five of the trial judge’s order dated October 13, 2009 (the “Order”) on the grounds that the two witnesses in question – Messrs. Lapointe and Le Pan – are not compellable witnesses under the summons issued by the parties and, further, that the trial judge erred by concluding that the public interest in disclosure of the information to which the Attorney objected outweighed deliberative secrecy relating to that information.

[2] During oral argument before this court, the matters in dispute between the parties narrowed considerably.

[3] The defendant insurers seek to put before the trial judge only paragraphs 5 and 22 of the October 29, 1997 memorandum prepared by Mr. Le Pan. In our view, those paragraphs contain statements of fact that do not engage deliberative secrecy. Accordingly, those paragraphs may be put before the trial judge through the evidence of Mr. Le Pan, who is a compellable witness for the purpose of the admission of this evidence. Of course, it is for the defendant insurers to elect whether to call Mr. Le Pan as a witness. Thus, we agree with paragraph four of the Order.

[4] Should the defendant insurers choose to call Mr. Le Pan as a witness for the purpose of putting the above-noted paragraphs from his memorandum into evidence, counsel for the plaintiffs shall be entitled to pursue a line of questioning with Mr. Le Pan focused on whether, in recommending the approval of the overall acquisition, he or his staff considered if the participating account transactions complied with ss. 458 to 464 of the Insurance Companies Act, R.S.C. 1991, c. 47. In our view, as properly acknowledged by counsel for the Attorney, the answers to questions of that nature are matters of fact not covered by deliberative secrecy.

[5] We do not agree with the trial judge’s conclusion, expressed in paragraph five of her Order, that “the public interest in disclosure outweighs in importance the specified public interest”, that is, deliberative secrecy, in respect of the information to which objection was made by the Attorney.

[6] As ultimately framed by the respondents during oral argument in this court, any information beyond that outlined above is no longer sought. Consistent with that position, should the plaintiffs seek and be permitted by the trial judge to call Mr. Lapointe as a reply witness, any questioning of him by either party shall be restricted to the line of questioning outlined above.

[7] It follows that if, during the course of that limited examination of Mr. Lapointe, counsel for either party seeks to refer to Mr. Lapointe’s memorandum of October 16, 1997, those references shall be similarly confined to the line of questioning above-described.

[8] We add that, in our view, certain of the contents of the Lapointe memorandum engage deliberative secrecy. Accordingly, we direct that the Lapointe memorandum not be admitted into evidence at trial.

[9] In the result, the appeal is allowed in part, paragraph five of the Order is set aside and an Order in accordance with these reasons is substituted in its stead. This is not an appropriate case for an award of costs.

“D. O’Connor A.C.J.O.”

“John Laskin J.A.”

“E.A. Cronk J.A.”